Michael J. O'Brien v. Kathleen E. O'Brien (2010)

MEMORANDUM OF DECISION

The Court finds that the plaintiff has been using marital funds, post-judgment including portions allocated by the trial court to the defendant.   The plaintiff has also prevented the defendant from accessing funds that were awarded to her by the Court.   After hearing and examination of the record the Court finds that the due administration of justice requires the Court to terminate the automatic stay of its orders.   See Griffin Hospital v. Commission on Hospitals and Healthcare, 196 Conn. 451 (1985).

The issue of the parties' membership at the Stanwich Club in Greenwich creates a dilemma that cannot be resolved based on the present state of the record.   The parties' three children have access to the club and all its amenities but the defendant is not allowed to use the facilities.   The membership certificate is in the name of the plaintiff so in order to transfer sole ownership pursuant to the judgment of the Court;  the plaintiff would have to agree to transfer the certificate to her.   An order could enter that any and all expenses incurred by the defendant, other than admission fees, would be her sole responsibility but there is no guarantee that her admission is automatic.   It should be noted that the testimony indicated that the plaintiff used the golf facilities infrequently.

But this issue is not for this court to resolve.   The club certificate is not a marital asset and since the certificate is in the name of the plaintiff, this court has no authority to order the transfer the membership rights in the Stanwich Club. Brewster v. Brewster, 39 Conn. L. Reporter, 401 (2005).

The private club in question is located in Greenwich.   There is no doubt that the three minor children have access and the plaintiff has encouraged the same.   The club membership is simply not subject to distribution.   No evidence has been offered that the bylaws of the club allow a transfer of membership.   The court has no power to make a new by-law for the club and the club has never been made a party to this action.   Unlike the parties in Brewster v. Brewster, supra, the plaintiff has not offered defendant the use of the club but in fact, the club has restricted her use.

There is no evidence before the Court assuming defendant's application is approved as to whether additional fees will be assessed for any new membership and if so how much.   There is no claim of discrimination and no restriction has been placed on a female's right to apply for membership.

In fairness to both parties the issue of by-laws, certificate of incorporation, or other club documentation has not been submitted to the court.   An examination of the conditions of the issuing of a bond, membership rights and distribution of the club assets upon dissolution are factors the court must consider.

In addition before the court can decide this issue it must consider its impact on its already ordered division of assets.   Any further financial order might well be based on the club's assessment of admission fees and while the division of assets is not an exact science a further order should not jeopardize the underpinning of the judgment.

ORDERS

In response to the defendant's Motion to Terminate Stay dated April 7, 2010:

1. SECURITIES

The Court shall terminate the stay on the Merrill Lynch account # xxxA38 and the CFSB account.

2. STOCK OPTIONS

The Court terminates the stay on the CFSB stock options.

3. PRIVATE EQUITY INTERESTS

The Court shall terminate the stay on the CFSB Fund V, the CFSB Fund VI, the CFSB EMA 1999, and the CFSB ESC 2001.

4. PENSIONS AND RETIREMENT PLANS AND OTHER FUTURE ASSETS

The Court shall terminate the stay on the Fidelity IRA and the Citibank IRA.

5. CLUB MEMBERSHIP

The Court cannot resolve the issue of the parties' membership at the Stanwich Club in Greenwich, Connecticut based on the present state of the record.   The Court discussed this issue at length in its Memorandum of Decision above.

OWENS, J.T.R.

Owens, Howard T., J.T.R.